[Cites 5, Cited by 0]

Gujarat High Court

Padamsinh Aderajsinh Thakore vs State Of Gujarat on 2 February, 2026

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                             C/SCA/6719/2024                              ORDER DATED: 02/02/2026

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 6719 of 2024

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                                         PADAMSINH ADERAJSINH THAKORE & ORS.
                                                        Versus
                                               STATE OF GUJARAT & ANR.
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                      Appearance:
                      MR MB RANA(2760) for the Petitioner(s) No. 1,2,3,4,5
                      MR SHIVAM PARIKH AGP for the Respondent(s) No. 1
                      MS.R.R.GUPTA FOR MR HS MUNSHAW(495) for the Respondent(s) No. 2
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                         CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                                                      Date : 02/02/2026

                                                       ORAL ORDER

1. By way of the present petition filed under

Articles 226 and 227 of the Constitution of India,

petitioner has prayed for following reliefs:

"15A) Be pleased to admit and allow this Special Civil Application;

B) Be pleased to issue the writ of certiorari/mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the order (Impugned) dated

2.3.2024 passed below Exh.7 in Regular Civil Appeal No.6 of 2021 by the Learned 3rd Additional Sessions Judge, Banaskantha at Deodar, (Ann:A) by holding and declaring the same as unjust, improper, arbitrary, against the principles laid down by this Honourable Court as well as Honourable Supreme Court of India, and passed without proper application of judicious mind, in the interest of justice.

C) Pending admission, hearing and final disposal of this

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petition, be pleased to stay the execution, implementation and operation of the order impugned dated 2.3.2024 passed below Exh.7 in Regular Civil Appeal No.6 of 2021 by the Learned 3rd Additional Sessions Judge, Banaskantha at Deodar (Ann:A), in the interest of justice;

D) Be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case.

2. Heard learned advocate Mr.M.B. Rana for the

petitioner, learned advocate Ms.R.R.Gupta for learned

advocate Mr.H.S.Munshaw for respondent No.2 and

learned AGP for respondent - State.

3. At the outset, learned advocate for the

petitioner has contended that the suit was filed by

present petitioner seeking relief of declaration and

permanent injunction, which was decreed by learned

Principal Senior Civil Judge, Deodar District:

Banaskantha, on 27.01.2021. During the pendency of

the suit, present respondent-original defendant

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appeared and contested the suit by filing written

statement and producing documentary evidence. The

decree came to be passed against the present

respondent, wherein Regular Appeal came to be filed

by the Government before the learned District Court at

Deodar. In the said Appeal, an application at Ex.7

came to be filed under Order XLI Rule 27 of the Code

of Civil Procedure, 1908 (For short 'CPC').

3.1 It is further contended that the said

application does not satisfy the test laid down under

Order XLI Rule 27 of CPC. The learned District Court,

while granting the application, has observed that

despite filing Written Statement and leading oral

deposition, for reasons best known to the Government,

the documentary evidence could not be produced.

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Therefore, an application under Order XLI Rule 27(1)

(b) of the CPC was allowed.

3.2 Learned advocate for petitioner has relied

upon the decision of the Hon'ble Apex Court in the

case of Iqbal Ahmed Vs. Abdul Shukoor reported in 2025(0)

AIJEL-SC 75775 and contended that the Hon'ble Apex

Court has categorically held that it would be first

necessary to examine the pleadings of party. The Court

also must examine as to whether additional evidence

sought to be led was supported by pleadings of

defendant in written statement. In absence of necessary

pleadings, permitting a party to lead additional

evidence would result is an unnecessary exercise and

such evidence, if led, would be of no consequences.

Except above, no other submissions are made by

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learned advocate for petitioner.

4. Per contra, learned AGP has supported the

impugned order and contended that the documents

which are sought to be produced in the nature of

revenue record and relevant revenue record, could not

be produced during the trial. It is further contended

that no written statement was filed and the State's

opportunity to file adjournment was closed. It is

further contended that the proposed documents are

necessary for the learned District Court for

pronouncement of judgment and also for a substantial

cause, additional evidence are required to be brought

on record. Except above, no other submissions are

made by learned AGP.

5. On the other hand, learned advocate for

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respondent No.2 has no objection, if the matter is

remanded back.

6. I have considered the submissions canvassed

by learned advocates for the respective parties and

perused the record and proceedings. An application

Ex.7 has been filed by respondent herein seeking

production of additional evidence by invoking the

provisions of Order XLI Rule 27 of the CPC. The said

application, which is filed by respondent, inter alia,

stating that the land in question is a Government land

and it has been allotted for different purposes. The

stage for filing the evidence was closed which was re-

opened. However, Defendant No.1 led only oral

evidence, and no documentary evidence was produced.

It is also stated in the application that, the revenue

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entries have been mutated to that effect and those

revenue entries and revenue record are sought to be

produced by way of additional evidence.

It appears from the impugned order that the

learned District Court, while entertaining the

application, has not taken into consideration the

defence raised in the written statement as well as has

not appreciated the settled proposition of law which

lays down that when an application under Order XLI

Rule 27 of the CPC is under consideration, the Court

has to first of all examine whether the additional

evidence sought to be produced is supported by the

pleadings and whether such evidence is necessary for

the Appellate Court to enable it to pronounce the

judgment.

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7. Upon perusal of the impugned order, there

is no due satisfaction recorded by the learned District

Court and whether the test which has been laid down

in Order XLI Rule 27(1)(b) of the CPC are satisfied.

The only reason which has been assigned by learned

District Court in granting the application is that the

appellant-State could not produce the required

documents at the trial stage. It has also been observed

in the impugned order that the documents which are

sought to be produced where in custody of appellant-

State. If the documents were in possession of the

appellants-State, the appellant must establish that even

though after exercising due diligence, the evidence

proposed to be produced was not within the knowledge

and could not be produced at the time when the

decree appeal was passed.

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8. It is not the case of the appellant-State that

the learned Trial Court had refused to admit the

evidence which is sought to be produced at the

appellate stage. The Hon'ble Apex Court in the case of

Iqbal Ahmed (supra), in paragraph Nos.8 and 9 has

observed as hereunder:-

"8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the

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application moved by the defendant for leading additional evidence.

9. As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires reconsideration by the High Court. Since we find that the matter requires re-consideration at the hands of the High Court afresh, we have not gone into the aspect of delay in deciding the appeal by the High Court as was urged on behalf of the appellants.

9. In view of the above proposition of law as

laid down by the Hon'ble Apex Court as well as the

provisions contained under Order XLI Rule 27 of the

CPC, the present petition deserves to be allowed and

the same is allowed. The order dated 02.03.2024

passed below Ex.7 in Regular Civil Appeal No.6 of

2021 by the learned 3rd Additional Sessions Judge,

Banaskantha at Deodar, is hereby quashed and set

aside. And the matter is remanded back to the learned

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